10-010925 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Falcon Catering Service, No. 7 Status: Closed Recommended Order on Tuesday, May 10, 2011.

Summary: Respondents violated provisions of the Food Code, but mitigating factors reduced the fine amounts.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS , )

)

Petitioner , )

)

vs. ) Case No. 10 - 10925

)

FALCON CATERING SERVICE, NO. 7 , )

)

Respondent . )

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS , )

)

Petitioner , )

)

vs. ) Case No. 10 - 10930

)

FALCON CATERING SERVICE, NO. 8 , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice to all parties, a final hearing was

conducted in this case on March 3, 2011, via video

teleconference with sites in Tallahassee and Orlando, Florida,

before Administrative L aw Judge R. Bruce McKibben of the

Division of Administrative Hearings. The parties were

represented as set forth below.

APPEARANCES

For Petitioner: Megan De m artini, Qualified Representative

Department of Business and

Professional Re gulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent s : Sabrina Falcon, pro se

Falcon Catering Service

642 Mendoza Drive

Orlando, Florida 32825

STATEMENT OF THE ISSUES

The issues in these consolidated cases are stated in the

counts set forth in the Administrative Complaint for each case :

Whether Falcon Catering Service No. 7 (hereinafter "Falcon 7")

and Falcon Catering Service No. 8 (hereinafter "Falcon 8")

failed to maintain the proper protection and temperature

requirements for food sold from their mobile site in violation

of the federal Food and Drug Administration Food Code ("Food

Code") . In the Prehearing Stipulation filed in this matter,

each Respondent generally admitted t o the violations in the

Administrative Complaint s , but suggested that mitigating factors

should absolve them of the charges or greatly reduce any

administrative fine imposed .

PRELIMINARY STATEMENT

On or about February 4, 2010, and September 13, 2010,

Petit ioner, Department of Business and Professional Regulation,

Division of Hotels and Restaurants (hereinafter the "Division"),

filed Administrative Complaints against Falcon 7 and Falcon 8,

respectively. Each Respondent returned the Election of Rights

form s eeking a formal administrative hearing. The

Administrative Complaints and Election of Rights forms were

forwarded to the Division of Administrative Hearings ("DOAH") on

December 28, 2010, and assigned to the undersigned

Administrative Law Judge so that a formal administrative hearing

could be conducted. The cases were consolidated by Order dated

January 5, 2011.

At the final hearing, the Division called two witnesses:

Andrea Piel, senior investigator, and Valarie Freeman, district

manager. Petitioner' s Exhibits 1 through 10 were admitted into

evidence. Official recognition was taken of s ections 509.032

and 509 .049, Florida Statutes; Florida Administrative Code Rules

61C - 1.001 and 61C - 1.005; and Food Code Rules 2 - 301, 3 - 301,

3 - 306, 3 - 501, 5 - 103, and 5 - 202. (Unless specifically stated

otherwise herein, all references to Florida Statutes shall be to

the 2010 codification.)

Respondents called one witness: Sabrina Falcon. No

independent exhibits were offered into evidence by Respondents .

A T ranscript o f the final hearing was ordered by the

parties and filed at DOAH on March 30, 2011. The parties were

given ten days from the filing of the T ranscript to submit

proposed recommended orders. A letter from the representative

for each Respondent was filed at DOAH on March 10, 2011 , via

fax. The letter contained attachments that appear to be

demonstrative exhibits supporting the statements in the letter,

but those exhibits were not considered for purposes of this

Recommended Order . The Division timely submit ted a Proposed

Recommended Order. The submissions by both parties were duly

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Division is responsible for monitoring all licensed

food establishments in the state. It is the Division's duty to

ensure that all such establishments comply with the standards

set forth in relevant statutes and rules.

2. Respondents Falcon 7 and Falcon 8 are licensed mobile

food dispensing vehicles. Falcon 7 has license No. MFD5852560 ,

which was initially issued on April 23, 2005; Falcon 8 has

license No. MFD5852642 , which was issued on October 19, 2005.

Each of the Respondents serves meals and snacks to, inter alia,

laborers at construction sites.

3. On or about March 13, 2009, the Division conducted a

food service inspection on Falcon 7. At that time, the food

truck was located at 4880 Distribution C our t, Orlando, Florida.

One of the Food Code violations found by the inspector was

Item 53b. That citation meant there was no validation of

e mployee training on the truck. A follow - up inspection was

deemed to be required.

4. On April 10, 2009, a follow - up inspection was conducted

by the Division. At that time, Item 53b was cited as a repeat

offense. Also, I tem 8a was cited. Item 8a refers to protection

of food from contaminants and keeping food at an acceptable

temperature. Notes by the inspector indicate that a further

violation of Item 8a occurred because customers were allowed to

serve themselves directly from food containers , and there was no

fan in operation during the serving of food.

5. On May 28, 2009, another inspection of Falcon 7 was

conducted. At that time, the food truck was located at

12720 South Orange Blossom Trail, Orlando, Florida. Item 8a was

again cited as a deficienc y. The inspector's notes indicate

that food was not properly protected from contamination and that

customers were being served "buffet style" from the back of the

truck. The inspector noted that this was a repeat violation.

6. A follow - up or "call - back" inspection was conducted on

December 3, 2009, at which time the temperature in Orlando was

unusually cold. The food truck was at the same address on

Orange Blossom Trail as noted in the prior inspection. Falcon 7

was again found to have been serving foo d buffet style from the

back of the food truck. An Item 8a violation was again noted by

the inspector.

7. Another inspection of Falcon 7 was conducted on

January 19, 2010, another very cold day in Orlando. At that

time, the food truck was located at the same site as the last

two inspections. The inspector cited the food truck for an

Item 8a violation again, stating that the food was not being

protected from contaminants. Dust was flying up on the back of

the truck to exposed food items.

8. An inspecti on of Falcon 8 was conducted on August 25,

2009, while the truck was located at 4880 Distributio n Court,

Orlando, Florida. An I tem 8a violation was noted by the

inspector, who found that displayed food was not properly

protected from contaminants. The fo od truck was located under

an Interstate 4 overpass and was open to flying debris. The

inspector noted that customers were being served buffet style

and that there was no protection of food from contamination by

the customers.

9. A follow - up inspection f or Falcon 8 was conducted on

August 27, 2009, at 9:12 a.m. , while the food truck was located

at the same site. Another I tem 8a violation was cited at that

time. The violation notes indicate essentially the same

situation that had been cited in the initia l inspection two days

earlier.

10. Less than one hour after the follow - up inspection,

another inspection was conducted on Falcon 8 at the same

location as the prior two inspections. There were no Item 8a

citations issued during this inspection, but the fo od truck was

found to have no water available for hand washing. The food

truck employee was using a hand sanitizer to clean her hands.

11. Respondents do not dispute the facts set forth above.

However, Respondents provided mitigating facts for considerat ion

in the assessment of any penalty that might be imposed. Those

mitigating factors are as follows:

a. The food trucks were serving an inordinately

large number of workers during the dates of the

inspections. The City of Orlando was constructing its

ne w basketball arena , and there were numerous laborers

involved in the project.

b. In order to serve the workers, it was

necessary for the food trucks to put their food out on

tables , rather than ladle the food directly from the

food warmers in the food tru ck. In fact, the shelves

in the food trucks are so narrow that dipping food out

of the warmers would be impossible.

c. Due to the cold weather in Orlando during

this time, it was impossible to keep the food at

acceptable temperature levels for very long.

d. The large number of workers washing their

hands at the food trucks caused the trucks to run out

of water much more quickly than normal. When the

water ran out, the employees took care to sanitize

their hands as well as possible.

12. Ms. Falcon testif ied that the inspector's testimony

concerning use of tables to serve food was erroneous. However,

Sabrina Falcon was not present during the inspections , and her

contradictory testimony is not reliable.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to section s 120.569 and 120.57(1), Florida

Statutes.

14. The burden of proof is on Petitioner to show, by clear

and convincing evidence, that Respondents comm itted the acts

alleged in the Administrative Complaint s . Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987). The clear and convincing evidence

standard is used in the instant case because the action is a

penal licensure proceeding. Munch v. Dep't. of Prof 'l Reg. ,

592 So. 2d 1136 (Fla. 1st DCA 1992).

15. Clear and convincing evidence is an intermediate

standard of proof which is more than the "preponderance of the

evidence" standard used in most civil cases, but less than the

"beyond a reasonable doubt" st andard used in criminal cases.

See State v. Graham , 240 So. 2d 486 (Fla. 2d DCA 1970). Clear

and convincing evidence has been defined as evidence which:

[ R ] equires that the evidence must be found

to be credible; the facts to which the

witnesses testify must be distinctly

remembered; the testimony must be precise

and explicit and the witnesses must be

lacking in confusion as to the facts in

issue. The evidence must be of such weight

that it produces in the mind of the trier of

fact a firm belief or convi ction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)

(citations omitted).

16. Disciplinary actions may be based only upon those

offenses specifically alleged in the Administrative Complaint.

See Cottrill v. Dep't of Ins. , 685 So. 2d 1371 (Fla. 1st DCA

1996); Kinney v. Dep't of State , 501 So. 2d 129, 133 (Fla. 5th

DCA 1987); and Hunter v. Dep't of Prof'l Reg. , 458 So. 2d 842,

844 (Fla. 2d DCA 1984). A statute imposing a penalty is never

to be construed in a manner that expands the statute. Hotel and

Rest . Comm'n v. Sunny Seas No. One , 104 So. 2d 570, 571 (Fla.

1958).

17. Section 509.032(6 ) gives the Division authority to

adopt such rules as it deems necessar y to carry out the

provisions of the chapter. Rule 61C - 1.001(14) adopts the

federal Food and Drug Administration Food Code so that it can be

relied upon by the Division. Rule 61C - 1.005(6) sets forth the

standard penalties that may be imposed upon a findi ng of a

violation of the Food Code.

18. In DOAH Case No. 10 - 10925, Falcon 7 violated Food Code

Rule 3 - 501.16(A) by failing to maintain food at an appropriate

temperature.

19. In DOAH Case No. 10 - 10930, Falcon 8 violated Food Code

Rule 3 - 501.16(A), as we ll as r ule 3 - 306.11 pertaining to

protecting food from contamination ; r ule s 2 - 301.12 and 2 - 301 .14

regarding hand - washing requirements ; and r ule 5 - 202.12(A)

and (B) concerning food temperatures.

20. The violations in DOAH Case No. 10 - 10925 occurred both

pri or to and after the adoption of r ule 61C - 1.005(6)(e), the

Division's current penalty guideline rule. Section 509.261 ( 1)

provides the appropriate penalty for violations occurring prior

to adoption of the new guidelines. See Dep't of Bus. and Prof'l

Reg. v . I Love N.Y. Pizza , Case No. 10 - 10696 ( Fla. DOAH Mar . 15,

2011). The violations in DOAH Case No. 10 - 10930 occurred after

the adoption of the current guidelines, thus , the guidelines

would apply.

21. Section 509.261(a) provides for a fine not to exceed

$1 ,000 per offense. Rule 61C - 1.005(6) states as follows:

(6) Standard penalties. This section

specifies the penalties routinely imposed

against licensees and applies to all

violations of law subject to a penalty under

Chapter 509, F.S. Any violation req uiring an

emergency suspension or closure, as

authorized by Chapter 509, F.S., shall be

assessed at the highest allowable fine

amount.

(a) Non - critical violation.

1. 1st offense Î Administrative fine of

$150 to $300.

2. 2nd offense Î Administr ative fine of

$250 to $500.

3. 3rd and any subsequent offense Î

Administrative fine of $350 to $1000,

license suspension, or both.

(b) Critical violation. Fines may be

imposed for each day or portion of a day

that the violation exists, beginning on the

date of the initial inspection and

continuing until the violation is corrected.

1. 1st offense Î Administrative fine of

$250 to $500.

2. 2nd offense Î Administrative fine of

$500 to $1,000.

3. 3rd and any subsequent offense Î

Administrat ive fine of $750 to $1,000,

license suspension, or both.

* * *

(7) Aggravating or mitigating factors.

The division may deviate from the standard

penalties in paragraphs (a) through (h) of

subsection (6) above, based upon the

consideration of aggr avating or mitigating

factors present in a specific case. The

division shall consider the following

aggravating and mitigating factors in

determining the appropriate disciplinary

action to be imposed and in deviating from

the standard penalties:

* * *

(b) Mitigating factors.

1. Violation resulted from an act of God

or nature.

2. Length of time since the violation

occurred.

3. Length of time the licensee has been

in operation.

4. Effect of the penalty upon the

licenseeÓs livelihood.

5. Attempts by the licensee to correct

the violation.

6. Number of previous inspections without

violations of Chapter 509, F.S., and the

rules adopted pursuant thereto.

7. Disciplinary history of the licensee

within the 60 months preceding the date the

current administrative complaint was issued.

8. Any other mitigating factors, as

relevant under the circumstances. . . .

22. Respondents are guilty of critical violations of the

Food Code. However, the food temperatures were adversely

affec ted by the extremely cold weather -- an act of God.

Respondents mitigated the violation concerning lack of water in

two ways: First, the violation occurred only due to an

unusually large number of customers that day; second,

Respondents immediately drove b ack to the commissary to refill

the water tanks. These factors should be considered when

imposing a fine against Respondents.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entere d by Petitioner,

Department of Business and Professional Regulation, Division of

Hotels and Restaurants, imposing a fine of $500.00 against

Falcon Catering Service, No. 7, in DOAH Case No. 10 - 10925; and a

fine of $750.00 against Falcon Catering Service, No . 8, in DOAH

Case No. 10 - 10930. All fines should be paid within 30 days of

the entry of the Final Order by the Division.

DONE AND ENTE RED this 10th day of May , 2011 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIB BEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrati ve Hearings

this 10th day of May , 2011 .

COPIES FURNISHED :

William L. Veach, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Lay ne Smith, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2202

Sabrina Falcon

Falcon Catering Service

642 Mendoza Drive

Orlando, Florida 32825

Megan Demartini , Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street

Ta llahassee, Florida 32399 - 2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.